California Labor &
Employment Law Blog
Mar 26, 2012

California Employers May Be Barred from Requiring Disclosure of Social Media Passwords

Topics: Employee Hiring, Discipline & Termination, New Laws & Legislation, Personnel Policies and Procedures, Social Media, Workplace Privacy

Last week, we posted about the recent uproar over employers and colleges seeking to require applicants to surrender their Facebook passwords as a condition of hiring/admission and how that practice may be analyzed by the courts under an invasion of privacy challenge. 

California employers should also note that the California legislature has proposed a bill that would specifically outlaw the practice.   AB 1844, proposed by Assemblywoman Nora Campos (D), if enacted as currently drafted:

(a)  would prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee; and

(b) would also provide that an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media, as defined, before hiring the employee.

The bill would add sections 980-982 to the California Labor Code to read as follows:

980.  As used in this chapter, "social media" means an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.

981.  For purposes of a claim of negligent hiring, an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer's failure to search or monitor social media before hiring the employee.

982.  An employer shall not require an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.

This bill is a mixed bag, as currently drafted.  Proposed section 982 of the Labor Code would make it impossible for those California employers who wish to require applicants to surrender their Facebook and other social media passwords to engage in this conduct.  Certain employers would see this as an unfair restriction.  However, proposed section 981 of the Labor Code would protect California employers from negligent hiring lawsuits that are based on an employer's failure to search or monitor an applicant's social media profile and this would likely be seen as a positive piece of legislation by many California employers. 

AB 1844 was referred to the Assembly Committee on Labor and Employment on March 5.  We would not be surprised if this bill gained some traction as it may end up getting support from both employers and employees.  We will continue to keep you updated on this and other important California legislative developments.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

> visit primary site

About the Editor in Chief

Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
> Full Bio   > Email   Call 916.361.0991

CDF Labor Law LLP © 2021

Editorial Board About CDF What We Do Contact Us Attorney Advertising Disclaimer Privacy Policy Cookie Policy